Newt and the Judges

January 2, 2012

Newt Gingrich has created a ruckus, even among notional “conservatives” like Mike Huckabee and former Bush Attorney General Michael Mukasey, in his insistence that Congress can take action against federal jurists who behave outrageously. But Gingrich is not the only Republican candidate who wants to control our imperial judiciary. Rick Perry wants constitutional amendments which would limit lifetime judicial tenure and give Congress the power to override judicial decisions. Gingrich knows that no amendment is needed to the Constitution.

Gingrich would have Congress subpoena federal judges whose opinions seem clearly unconstitutional. He believes that the members of the House Judiciary Committee can require rogue judges to defend their opinions. Can the House do this? The tenure of all federal jurists is dependent upon “good behavior.” Why in the world should we assume that a judge manifestly ignoring the clear language of our brief foundational document is behaving well? If a federal judge is outraging the Constitution, how is Congress supposed to investigate the judge’s behavior?

Mukasey stated to Fox News: "The only basis by which Congress can subpoena people is to consider legislation.” That is a dumb thing for a smart man to say. During the Nixon impeachment hearings, the witnesses were not called to testify about legislation but rather misconduct and this misconduct, in many cases, was explicitly that the president overstepped his constitutional power.

Can arbitrary and capricious use of judicial power be grounds for impeachment? Of course! And who, exactly, determines when judges step far enough out of line to merit impeachment? The House of Representatives, alone, and then during the trial, the Senate alone determines the guilt or innocence of the impeached federal official.

Gingrich has also said that federal courts might be reorganized or even abolished. Can Congress do that? Congress has done that. The Judiciary Act of 1801 abolished federal courts and ended the jobs of federally appointed judges. Congress in 1913 simply abolished the Commerce Court. Congress could also strip from all lower federal courts all power to hear any issues relating to federal law or the Constitution. In fact, Congress did not even grant lower federal courts the general power to hear cases involving constitutional or federal issues until the Jurisdiction and Removal Act of 1875. Before then, issues all federal questions were decided in state courts and were appealed directly to the Supreme Court.

What about Gingrich’s statement that as president he would ignore unconstitutional rulings by federal courts? Andrew Jackson ignored the Supreme Court decision in Worchester v. Georgia and Lincoln did the same in Ex Parte Merryman. John Marshal noted in Marbury v. Madison, the decision which invented out of thin air the right of constitutional “interpretation,” that members of Congress and the president were bound by the same oath to protect the Constitution as federal judges, which might require presidents or congressmen consciously ignoring the Supreme Court in order to uphold their own oath to the Constitution.

How, then, is this tension in the Constitution to be resolved? There is a myth, that the Constitution was intended to create three separate and equal branches of the federal government. The Constitution itself screams otherwise. Congress alone, without the consent of the federal judiciary or the president can do all these things: (1) remove the president or any federal judge from office forever; (2) create or destroy any federal department or any federal court, except the Supreme Court; (3) but it can increase or decrease the number of justices on the Supreme Court; (4) propose to the states an amendment to the Constitution; (5) enact any federal statute and make any federal appropriation. In short, sufficient majorities in Congress can utterly override every “check and balance” in our federal system.

The only two rights which the federal judiciary has in the Constitution are that judges hold office for “good behavior” and that the compensation of judges cannot be decreased while in office. That suggests a profound indifference to the federal bench as a protector of individual rights. The great protector of our rights was not found within the federal government but in the structure of federal and state rights. The state legislatures chose all presidential electors and all senators, which meant that those legislatures could thwart virtually any malicious usurpation of their rights. State governments were very close to the people, and so more responsive to the losses of liberty, and citizens were given the right to move from state to state, creating a “marketplace of governments.”

The greater myth is that federal courts have helped civil liberties. It was the Supreme Court which struck down after the Civil War every effort of Congress to secure civil rights for blacks in the South. It was the Supreme Court which precipitated, in many people’s minds, our ghastly Civil War by its bizarre reasoning in Dred Scott that blacks were not humans in America. The odious “separate but equal” doctrine was invented by the Supreme Court in Plessy v. Ferguson. The surreal reasoning of the Warren Court on criminal process created an explosion in the violent crime rate by exclusionary rules which could only help the guilty be they criminals or bad police.

The Left wants America to believe that federal courts protect our rights because through federal courts the Left can cram its radical agenda down our throats. If we do not tame the federal bench, no conservative revolution can ever succeed. Gingrich has proposed a straightforward and proper means of restoring government to the people and their elected. Rather than scurry in timid fear of an angry establishment, we ought to embrace his plan.